Atlas Iron Pty Ltd and Another v Nyamal Aboriginal Corporation
[2020] NNTTA 75
•27 November 2020
NATIONAL NATIVE TITLE TRIBUNAL
Atlas Iron Pty Ltd and Another v Nyamal Aboriginal Corporation [2020] NNTTA 75 (27 November 2020)
Application Nos: | WF2020/0008; WF2020/0009; WF2020/0010 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into future act determination applications
Atlas Iron Pty Ltd
(grantee party)
- and -
Wodgina Lithium Pty Ltd
(grantee party)
- and –
Nyamal Aboriginal Corporation RNTBC (WCD2019/010, WCD2019/011)
(native title party)
- and -
State of Western Australia
(Government party)
DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY
Tribunal: | Ms Helen Shurven |
Place: | Perth |
Date: | 27 November 2020 |
Catchwords: | Native title – future act – application for a determination in relation to a mining lease – power to make determination – whether grantee party has negotiated in good faith – grantee party has negotiated in good faith – Tribunal has power to proceed with future act determination inquiry |
Legislation: | Native Title Act 1993 (Cth) ss 29, 30, 30A, 31, 35, 36, 38, 109 |
Cases: | Adani Mining Pty Ltd/Jessie Diver & Ors on behalf of the Wangan and Jagalingou People/State of Queensland [2013] NNTTA 30 (Adani Mining v Diver) FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141; [2009] FCAFC 49 (FMG Pilbara v Cox) Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corporation (2005) 196 FLR 52; [2005] NNTTA 88 (Gulliver v Wester Desert Lands Aboriginal Corporation) Kevin Peter Walley on behalf of the Ngoonooru Wadjari People v Western Australia & Ors (1999) 87 FCR 56; [1999] FCA 3 (Walley v WA) Norwest Sand & Gravel Pty Ltd v Ngarluma Aboriginal Corporation RNTBC & Another [2020] NNTTA 68 (Norwest v Ngarluma Aboriginal Corporation) Placer (Granny Smith) Pty Ltd v State of Western Australia (1999) 163 FLR 87; [1999] NNTTA 521 (Placer v Western Australia) Strickland v Minister for Lands (1998) 85 FCR 303; [1998] FCA 868 (Strickland v Minister for Lands) Western Australia v Dimer (2000) 163 FLR 426; [2000] NNTTA 290 (Western Australia v Dimer) Western Australia v Taylor (1996) 134 FLR 211; [1996] NNTTA 34 (Western Australia v Taylor) Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2); Brendan Wyman & Ors (Bidjara People)/Queensland [2012] NNTTA 93 (Xstrata v Albury) |
| Representatives of the native title party: | Grace Manning-Davis and Hayley Haas, Arma Legal |
| Representative of the grantee parties: | Melissa Watts, M Watts Legal |
| Representatives of the Government party: | Bree Ingram and Christine Weetman, Department of Mines, Industry Regulation and Safety Domhnall McCloskey, State Solicitor’s Office |
REASONS FOR DETERMINATION
Background
On 14 August 2019, the State of Western Australia (the State) notified under s 29 of the Native Title Act 1993 (Cth) (the Act/NTA) that it intended to do the future act of granting mining lease M45/1280 to Wodgina Lithium Pty Ltd (Wodgina Lithium). According to the notice, the lease comprises an area of just over 3 square kilometres, located approximately 58 kilometres westerly of Marble Bar. Atlas Iron Pty Ltd (Atlas Iron) is the beneficial interest holder in the future act and represents Wodgina Lithium in this inquiry.
Two other mining leases were notified by the State on the same day as future acts, both applied for by Atlas Iron: M45/1281 (which is approximately 6.4 square kilometres in size, 39 kilometres north westerly of Marble Bar) and M45/1282 (which is almost 16 square kilometres, and 48 kilometres west of Marble Bar). In these reasons, M45/1280, M45/1281 and M45/1282 are referred to collectively as ‘the leases’.
Who are the parties to this inquiry?
Atlas Iron and Wodgina Lithium are referred to collectively as ‘the grantees’.
Any person who, four months after the notification day, is a native title party (a registered native title claimant or a body corporate) in relation to any of the land or waters that will be affected by a future act, has a procedural right to negotiate with respect to its grant (see s 30(1)(a) and s 31 of the Act). The Nyamal Aboriginal Corporation (WCD2019/010, WCD2019/011) (Nyamal/NAC) are the native title party because they hold native title rights and interests for the Nyamal People over the area of the leases. Nyamal are also referred to on occasion as ‘Njamal’ throughout the materials.
The normal negotiation procedure is that the ‘negotiation parties’ must negotiate in good faith with the native title party with a view to obtaining their agreement to the doing of the future act (s 31(1)(b) of the Act). The ‘negotiation parties’ with respect to the grant of the leases are the State, the grantees and Nyamal (s 30A of the Act). Under s 35 of the Act, any negotiation party may apply to the arbitral body for a determination under s 38 of the Act if there is no such agreement, provided at least six months have passed since the s 29 notification date.
For convenience, I have listed the main relevant entities who feature throughout the materials provided by parties:
·Atlas Iron – responsible for the project to be conducted on the leases (the Miralga Creek Project), and for other adjacent projects, and agent for Wodgina Lithium in this context.
·Arma Legal – responsible for future act negotiations for Nyamal.
·Barbinbinya Aboriginal Corporation (BAC) – conduct heritage surveys within the Nyamal Native Title Claim/Determination Area.
·Nyamal Monitoring and Liaison Co-ordinators – the monitoring and liaison committee (MALC/MaLC) established under an agreement between Atlas Iron and Nyamal in 2008 (‘the 2008 agreement’) as ‘a means of communication between the parties and to generally monitor the implementation of the [the 2008 agreement]’ (clause 12.1) (see [8] below).
The future act determination applications
On 8 September 2020, the National Native Title Tribunal accepted an application from Wodgina Lithium (for M45/1280), and two applications from Atlas Iron (for M45/1281 and M45/1282), for a future act determination in relation to each of the leases (see ss 35 and 38 of the Act). The applications stated parties had been negotiating since August 2019 but had been unable to negotiate an agreement.
Each application also noted that Atlas Iron:
…is a party to an existing agreement between Atlas Iron Pty Ltd and the Njamal Native Title Applicants for and on behalf of the Njamal Native Title Claimants dated 6 December 2008 (Existing Agreement). On its face, the Existing Agreement provides consents on behalf of the Njamal Native Title Claimants to agree to the grant of acts, including the act in question. There is a partially executed deed of assignment and assumption executed by the Njamal Applicants and Nyamal Aboriginal Corporation seeking to authorise and assign the Existing Agreement to Nyamal Aboriginal Corporation.
The 2008 agreement and its applicability to the leases is one of the most contentious points of the good faith inquiry. The area of the 2008 agreement covered the Nyamal claims (Nyamal People #1 part determined on 24 September 2019 and Nyamal People #10 fully determined on the same date). As well as specific references to the negotiations in relation to the agreement of Nyamal to the grant of the three leases, the materials in this inquiry also cover discussions between the grantees and Nyamal regarding the assignment of the 2008 agreement to the Nyamal Aboriginal Corporation, following the claim determinations. I attempt to distinguish these negotiations in these reasons, although in places they become intertwined in the party materials.
I was appointed by the Tribunal President to conduct the inquiry and make a s 38 future act determination in relation to each application.
Tribunal power to make a determination
If any negotiation party satisfies the Tribunal that any other negotiation party (other than the native title party) did not negotiate in good faith, the Tribunal must not make a determination (see s 36(2) of the Act). The implication of s 36(2) was explained by the Full Federal Court in FMG Pilbara v Cox (at [11]) as follows:
... the statutory prohibition at s 36(2) affects the ‘power’ of the Tribunal to make an arbitral determination rather than its ‘jurisdiction’. The prohibition on exercise of the power only arises when the good faith point is both taken and taken successfully by a negotiation party. If there were no good faith but the point were not taken, the Tribunal would still have jurisdiction and power. The power to make a determination is a function of the jurisdiction conferred on the Tribunal.
Nyamal alleges the grantees failed to negotiate in good faith. Therefore, before I can make a determination about the grant of the future acts, I must be satisfied the grantees negotiated in good faith with a view to obtaining the agreement of Nyamal (as required by s 31(1)(b)).
Nyamal made no such allegation against the State, so this part of the inquiry focuses only on the conduct of the grantees.
The obligation to negotiate in good faith
The obligation to negotiate in good faith is set out in s 31 of the Act:
s 31 Normal negotiation procedure
(1)Unless the notice includes a statement that the Government party considers the act attracts the expedited procedure:
(a)the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and
(b)the negotiation parties must negotiate in good faith with the view to obtaining the agreement of each of the native title parties to:
(i) the doing of the act; or
(ii) the doing of the act subject to conditions to be complied with by any of the parties.
(2) If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph (1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of the paragraph.
Legal Principles for assessing negotiation in good faith
The effect of s 36(2) of the Act is to require the party alleging the lack of good faith to produce material to support the allegation. As explained in Gulliver v Western Desert Lands Aboriginal Corporation (at [10]):
The Tribunal has said that the practical effect of s 36(2) is to place an “evidential burden” on the party alleging lack of good faith negotiations which would normally require it to produce evidence to support its allegations. The Tribunal is not required to adopt strict rules on burden of proof but any party alleging a lack of good faith negotiations must provide contentions and documents which specify in detail the matters it relies on. (Dempster, Western Australia and Bayside Abalone [1999] NNTTA 235 Hon EM Franklyn QC (at 4, 21); Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87 (21 December 1999) (at [21]-[28])).
The expression ‘negotiate in good faith’ is not defined in the Act and should be given its ordinary and natural meaning as it appears within the statutory context of s 31(1)(b). This incorporates both a requirement of subjective honesty of intention and sincerity and an objective standard of overall reasonableness (See Strickland v Minister for Lands and cases therein).
The parties are not required to reach any particular stage of negotiations before applying for a future act determination application. However, it is insufficient to merely go through the motions, and the quality of the conduct must be assessed (see FMGPilbara v Cox at [20]-[27]):
It has been repeatedly recognised that the requirement for good faith is directed to the quality of a party’s conduct. It is to be assessed by reference to what a party has done or failed to do in the course of negotiations and is directed to and is concerned with a party’s state of mind as manifested by its conduct in the negotiations... The Act makes no reference to the parties reaching any particular stage in their negotiations … there could only be a conclusion of lack of good faith within the meaning of s 31(1)(b) of the Act where the fact that the negotiations had not passed an ‘embryonic’ stage was, in turn, caused by some breach of or absence of good faith such as deliberate delay, sharp practice, misleading negotiating or other unsatisfactory or unconscionable conduct…
In Western Australia v Taylor, the Tribunal provided a series of indicia of conduct to be taken into consideration when assessing good faith, which was endorsed by the Federal Court in Walley v WA (at [9]) and has been consistently referred to in Tribunal decisions. The good faith indicia as a whole focus on conduct which is ‘unreasonable’, ‘unexplained’ or ‘unnecessary’. I must look at the overall conduct of the grantees in all of the circumstances (see Western Australia v Dimer at [85] and Adani Mining v Diver at [34]).
Whether a native title party has negotiated in good faith is not part of the consideration under s 36(2), although the native title party’s conduct can be taken into consideration when the Tribunal is assessing how reasonable the conduct of the grantee party or the State has been in the circumstances (see Xstrata v Albury at [65] and Placer vWestern Australia at [30]). As noted in Western Australia v Taylor, the conduct of the other parties to a negotiation process is relevant to deciding whether a party has negotiated in good faith. A lesser standard may be required if the other parties behave unreasonably, or in a manner not conducive to constructive negotiations. I do not believe that a lesser standard applies in this matter.
In making a decision about good faith negotiations, it is useful to bear in mind I am reconstructing negotiations and progress based on the materials provided by parties well after those negotiations have taken place.
The inquiry process
I convened a preliminary conference on 15 September 2020, where compliance dates were addressed, including the issue of the good faith allegations. Following further communication with parties by email, a timetable was settled which accommodated party’s needs, the Tribunal’s way of operating and procedural fairness (ss 109 and 142 of the Act).
The States materials focused on the substantive s 39 inquiry. A vast amount of material was provided by the other parties in relation to the good faith inquiry, with one affidavit alone being over 1,000 pages. I have considered that material, and provide the following overview of the materials provided relevant to the good faith inquiry:
From the grantees:
·Statement of contentions in support of the applications, statement of contentions in response to Nyamal’s good faith allegations and final good faith submissions.
·Affidavit of Stacey Anne Brown, Atlas Iron Project Manager. The affidavit states Ms Brown is responsible for, among other things, the delivery of the Miralga Creek Project.
·Affidavit of Bronwyn Rachel Kerr, General Counsel/Company Secretary Atlas Iron. By way of context for this inquiry, I note the Affidavit states (at 3) that ‘From November 2019, land access, tenure and community responsibilities were included in my role. I have been primarily responsible for the legal elements of stakeholder engagement and native title matters. Stacey Brown, Project Manager, is responsible for key project stakeholder engagement’.
·Further Affidavit of Bronwyn Kerr, which notes (at 3) that ‘Since I assumed the role of General Counsel in 2016, I have had oversight of interactions concerning the Existing Agreement, including heritage matters, and have reviewed Atlas' internal files relating to survey requests made in relation to Nyamal’.
·Book of Documents (and all documents referred to in that index).
From Nyamal:
·Statement of contentions, statement of contentions in reply to the grantees, and final good faith submissions.
·Affidavit of Hayley Mary Haas, Arma Legal, the Nyamal future act representative (with attachments referred to in this decision as HMH).
·Supplementary Affidavit of Hayley Mary Haas.
·Evidence of Gavin Mitchell, General Manager Corporate/Chairman and Director of the Nyamal Aboriginal Corporation since 8 May 2019.
The above summary also reflects the exchange of final written submissions and evidence between the grantees and Nyamal, following the native title party reply. A brief conference was allowed on Friday 20 November, whereby parties exchanged final information and submissions orally. Parties did not seek to add anything further, apart from the Nyamal representatives who attended the conference confirming they would not be relying on paragraphs [9]-[11] of the evidence of Mr Mitchell, or paragraphs [34]-[38] of the Nyamal final good faith submissions. An exchange of emails following the conference confirmed that course of action, and I confirmed I would not take those paragraphs into account in my decision making.
Parties were informed at the conference on 20 November that I was content to make the decision based on the papers and the information provided orally at the conference, and no party took exception to that course of action.
The grantees’ future act determination applications
The applications for a future act determination, in summary, asserted the following about whether I have the power to make such a determination – that is, whether the grantees have negotiated in good faith:
·Atlas Iron is the beneficial interest holder of M45/1280 (and underlying existing retention licence) and is entitled to be the registered applicant/holder subject to completion of a stamp duty assessment by the Office of State Revenue.
·Atlas Iron asserts the 2008 agreement applies to the leases.
·Atlas Iron offers ‘Traditional Owners briefings on its current activities at monitoring and liaison committees [MALC]….[and] …As the Native Title Party has not been able to confirm availability of appropriate representatives to attend a monitoring and liaison committee meeting for some time, Atlas Iron has arranged informal project briefings with certain members of the Native Title Party. In addition, Atlas continues to liaise with the Native Title Party regarding contracting opportunities at Atlas sites’.
·Atlas Iron consults ‘with Nyamal's [heritage] appointee Barbinbinya Aboriginal Corporation on proposed heritage surveys to ensure heritage sites are identified and will be managed appropriately as the project develops’.
·‘Atlas's Aboriginal Relations Policy confirms Atlas's commitment building strong relationships of reciprocity with the Aboriginal community and local Traditional Owners’.
·‘A number of heritage surveys (both archaeological and ethnographic) have been undertaken in the area since 2012, with the main Miralga Creek surveys completed over a series of trips in May, June and August 2019. A further survey is planned in late 2020 to cover some small gaps in the previous surveys and ensure the entire project area is surveyed’.
·‘Archaeological and ethnographic surveys identified a number of potential heritage sites, which the Grantee Party has buffered and excluded from the development envelope’.
The reference in the grantees’ applications to an ‘Aboriginal Relations Policy’ is supported by the grantees’ materials (Grantee Parties Document 10). I note the policy is brief and in the context of engagement and building relationships with ‘local Traditional Owners’. It was to be reviewed in January 2019, according to the policy document, however, there is no indication as to whether this has occurred.
Nyamal’s good faith allegations
The Nyamal argument focuses on the assertion that the grantees adopted a rigid, non-negotiable position. While there are other issues touched on, such as failure to provide information, failure to organise a meeting, and failure to engage with a negotiation protocol, the overall focus of the good faith allegations centre on Nyamal’s assertion that the grantees did not move from insisting the 2008 agreement applied to the grant of the leases and, as such, that Nyamal should, therefore, sign the State Deeds for the leases.
In Norwest v Ngarluma Aboriginal Corporation, Member Cooley commented on the issue of existing agreements, noting that they are not in themselves s 31(1)(b) agreements and that ‘something more is required to comply with the NTA’ (at [125]). However, as Member Cooley went on to say (at [127]) ‘… for so long as the parties were content with the arrangement for “Future Tenements” it could work satisfactorily’. I also note the comment by Member Cooley (at [135]) that a previous agreement is relevant and ‘… the correct approach is to take [a previous agreement] into account as part of the context in which the parties entered the good faith negotiations. The parties did not come to this matter in a vacuum and the [previous agreement] … was a key part of their relationship’. I apply that reasoning to my approach in this inquiry.
Summary of the grantees’ project
In the future act determination applications, the three leases together are referred to as Miralga Mine or Miralga Creek Project, with open pit mining for iron ore to be undertaken by Atlas Iron.
The future act determination applications state Atlas Iron plans ‘to utilise a traditional drill, blast, load and haul method before crushing the ore and delivering it to port by road train’. Documents provided by Atlas Iron note the Miralga Creek Project leases are intended to be satellite pits to a nearby exiting mine (the Abydos Mine) (see Grantee Parties Documents 6A, 6B and 6C, page 2, for example). Ms Brown’s affidavit (at 17) also notes:
The Miralga Creek Project is being developed by Atlas in conjunction with its adjacent Corunna Downs Project which is the subject of granted mining lease 45/1257 within the undetermined Njamal native title claim area…The Corunna Downs Project mining lease was consented to by the Njamal Applicant pursuant to the Existing Agreement…and section 31 State Deed executed in 2016.
.
Ms Brown states the ‘Miralga Creek Project construction is due to commence Quarter 2 2021 with first ore anticipated to be mined in Quarter 1 2022’ (at 19) and the mine life is to be around 3-4 years (at 21). Ms Brown goes on to say (at 62) ‘Atlas has in place existing procedures with the Nyamal native title holders in relation to use and enjoyment of other Atlas mine areas by native title holders, including at the operating Mt Webber mine and the Corunna Downs Project. Atlas is willing to adopt the same procedures in relation to the Miralga Creek Project’.
The area of the leases subject to this inquiry is required for a pit, waste dumps, haul road and stock piles (see for example Grantee Parties Documents 6A, 6B and 6C, page 4).
Summary of Nyamal’s allegations regarding good faith
In their submissions, Nyamal make a number of assertions which they contend should satisfy me the grantee parties failed to negotiate in good faith.
Nyamal contentions (at 3) argue the grantee parties have ‘not engaged in negotiations with a view to obtaining the agreement of the Native title party to the doing of the Future Acts’ but rather have avoided ‘such negotiations by insisting that the Native title party is already bound to execute State Deeds for the grant of the Future Acts under a 2008 agreement’. Nyamal go on to argue (at 3), the grantee parties have ‘maintained that view despite receiving legal advice from senior and junior counsel that the agreement is not an agreement for the purpose of s 31(1)(b) of the NTA and that the Agreement may not be enforceable except as against the members of the Applicant who entered into it’ (emphasis in original). However, I do note whether or not the legal advice is unequivocal on this point is in issue between the parties and even with the counsel who provided the opinion (see [59]-[60] below).
In the alternative, Nyamal argue that ‘even if…the Grantee Party has engaged in negotiations with a view to obtaining the agreement of the Native title party to the doing of the Future Acts, its conduct overall does not meet the requirement of good faith under s 31(1)(b) of the NTA’, because they have ‘taken a rigid, non-negotiable position that the Future Acts are governed by the 2008 agreement and that … [Nyamal] must execute State Deeds for the Future Acts’. In the alternative, Nyamal contentions (at 90-111) assert the grantee parties adopted a rigid non-negotiable position in relation to seeking to apply the 2008 agreement to the grant of the Future Acts.
Nyamal contentions also assert (at 3) the grantee parties have ‘refused to engage in relation to a negotiation protocol and has not provided more information about the Future Acts; and accordingly, under s 36(2) of the NTA, the NNTT must not proceed in determining the Grantee party’s Future Act Determination Applications’.
The assignment of the 2008 agreement to NAC
In essence, negotiations between the grantees and Nyamal about the assignment of the 2008 agreement to NAC, following the part determination of the Nyamal claims, took place from approximately November 2019, after the determination in September 2019, and has not been resolved.
On 21 November 2019, the grantees and Arma Legal engaged in a half hour telephone conversation (HMH-14). On 3 December 2019, the grantees provided their email summary of the 21 November 2019 telephone conversation (HMH-15) and on 5 December 2019 Arma Legal replied (HMH-16). In their email summary, the grantees note the parties discussed a deed of assignment for the 2008 Agreement to NAC, and that NAC was ‘reviewing the MaLC structure, and is presently unable to convene a MaLC Meeting’. The grantees confirmed they would seek Wodgina Lithium’s consent to provide relevant documentation requested by Nyamal about the arrangement between Wodgina Lithium and Atlas Iron ‘that evidences Atlas’ beneficial rights in the application for M45/1280 as well as Atlas’ right to seek transfer of the mining lease upon grant’. The grantees also note ‘I understand that Njamal and Atlas will be able to sign State Deeds [for M45/1281 and M45/1282] as soon as the assignment … is complete. Please let me know if you have a different view.’
Arma Legal’s response was to attach the deed of assignment, advise they were now able to convene a MALC meeting ‘and await your advice as to when Atlas will be able to meet’. Arma Legal’s response ‘noted’ Atlas Iron’s comments on M45/1280. In relation to M45/1281 and M45/1282, Arma Legal stated ‘We will seek instructions on this and revert although I note that it had been anticipated that the parties would convene a MaLC meeting whereby Atlas would have an opportunity to update the NAC as to the project operations and new lease applications.’
While both parties agreed that an assignment should take place, they could not agree on its form.
The leases and communications between the grantees and Nyamal
May 2019 to September 2019
In May 2019, prior to the s 29 notifications, the grantees contacted Nyamal (via Arma Legal) to advise they had applied for the leases (which would shortly be notified). The grantees sought confirmation from Nyamal that the 2008 agreement applied to the lease applications, and that as such, Nyamal would not object to the grant of the applications (HMH-1). Twice in September 2019, following s 29 notification, the grantees sought Nyamal’s view about the grantees’ request to sign the State Deeds for the leases. It does not appear any response was provided from Arma Legal (HMH-4 and 5). In October 2019, the grantees again wrote to Arma Legal, copying in the Nyamal MALC heritage coordinator, as follows:
Firstly I wanted to congratulate you on your partial determination last month. Such an amazing milestone! I was hoping to get in contact with you both to arrange our next MaLC meeting…I understand you may have a lot going on with the recent determination, so I will await your advice in due course (Grantee Parties Document 3A).
The same day, the MALC Coordinator (including Arma Legal) thanked Atlas Iron for their patience, and Atlas Iron proposed some dates in November 2019 (Grantee Parties Documents 3B-3C).
Mr Mitchell states in his evidence (at 7-8) that he did not understand ‘those emails requesting MaLC meetings were related to the negotiations about the Mining Leases … MaLC meetings are set up with lots of different mining companies for them to provide updates about their mining operations on Nyamal Country. In my experience, MaLC meetings would never be arranged to negotiate about the Mining Leases because no agreement had been reached about them yet’. In addition, the Nyamal final good faith submissions (at 27) and Ms Haas’s Supplementary Affidavit (at 25-31) assert Nyamal’s understanding was that the request for a MALC meeting by the grantees ‘were not in respect of the Mining Leases)’.
Given the 2008 Agreement covered the Nyamal claim and determination areas, and the broad scope of the MALC as defined in the agreement (that is, a means of communication between the parties and to generally monitor the implementation of the 2008 Agreement), and given the exchange as outlined at [39] above, I do not think it is unreasonable for the grantees to have considered the MALC was a communication channel in relation to the newly applied for leases which fell in the 2008 Agreement area.
In the meantime, the grantees issued heritage survey requests to Nyamal (through BAC) over areas covered by the leases and the surveys were undertaken (for example, in May, August and October 2019 – see Grantee Parties Document 11), apparently through the mechanisms provided in the 2008 agreement. Nyamal allege the grantees undertook heritage surveys by unauthorised representatives (for example, in their final submissions (at 26) and Ms Haas’s Supplementary Affidavit (at 35)). However, I note the surveys were done by Terra Rosa, through the BAC, over the Miralga Creek Project area. No issues appear to have been raised at the time of those surveys. I do not think it unreasonable for the grantees to proceed with the surveys on the basis they were done with the agreement of Nyamal.
The grantees did not provide Nyamal with information about the new leases as requested by the State in August 2019. Instead the grantees advised Nyamal and the State of their understanding that the 2008 agreement applied to the leases) (HMH-4). In any event, Nyamal did not request such information (apart from the references to updating Nyamal through the MALC for example, as outlined above). Based on the material provided, the only information Nyamal sought for ‘the submissions that the NAC are required to provide DMIRS’ was information about the relationship between Wodgina Lithium and Atlas Iron in the context of the leases, and Atlas Iron provided the requested information (as outlined at [39] and below at [46]-[47]; HMH-8 to 10).
October 2019
On 22 October 2019, the grantees emailed Nyamal stating that Atlas Iron had a joint venture agreement with Wodgina Lithium to operate M45/1280. That email also again attached State Deeds for the three leases ‘for your review’ and asking ‘Do you have a timeframe to share for when the deeds may be able to be signed so I can keep the business updated?’ (HMH-10).
On 23 October 2019, Arma emailed their submissions to the State (as requested by the State) for M45/1280 only (this was copied to the grantees) (HMH-11). The letter states ‘We have received correspondence from the representative for the Grantee [Wodgina Lithium] which asserts that the Mining Lease, if granted, is to be the subject of agreement between the Native title Party and a third party [Atlas Iron]. However, we require further information from the grantee before we can advise our client in this respect. Until such time … we reserve our clients’ rights in relation to this matter.’
It is not unreasonable on the basis of such communications, as well as the conduct of the heritage surveys on the Miralga Creek Project area, for the grantees to assume the 2008 Agreement would apply to the leases and the only issue that required further explanation was the arrangement between Atlas Iron and Wodgina Lithium over M45/1280. This view is supported by the grantee emailing Nyamal on the same day Nyamal made its submission to the State, advising ‘in light of [Arma’s] correspondence, today, I am compiling further information to provide you both tomorrow. I hope this will assist in providing some further clarity on the application and Atlas’ involvement’ (HMH-12).
So as at October 2019, the grantees had not obtained a clear response from Nyamal as to the application of the 2008 agreement to the leases or whether the State Deeds would be signed.
November 2019 to April 2020
The grantees and Arma Legal then engaged in discussion around the assignment of the 2008 agreement to NAC given the determination of native title in September 2019. Between November 2019 and April 2020, the grantees and Arma Legal exchanged telephone calls, emails and documents in relation to the wording of the assignment of the 2008 agreement, and the timing of a MALC meeting (see for example, HMH-17, Grantee Parties Document 3D-3E). A revised deed of assignment was sent from the grantees to Arma Legal in December 2019, and the grantees followed that up several times – it appears they understood the State Deeds would be signed once the assignment process had been completed. For example, in January 2020 the grantees wrote to Arma Legal (HMH-18) noting ‘We are hopeful that Nyamal will be in a position to sign these State Deeds as soon as the PBC assignment is finalised. We look forward to updating Nyamal on our projects at the next MaLC.’ The next day Arma Legal confirmed receipt and advised they were ‘awaiting instructions regarding the matters’ (HMH-19).
On 6 February 2020, Arma Legal replied ‘We will review the documents regarding the split commodity arrangements between Atlas and Wodgina and revert.’ They also noted ‘I am awaiting confirmation of the outcome of an NAC board meeting and upon receiot [sic] of this will come back to you on the other matters, including update as to assignment.’ (HMH-20). On 6 February 2020, the grantees also emailed Arma Legal and the Nyamal MALC Coordinator, following up on the request to arrange a MALC meeting because:
Atlas is keen to meet with Njamal representatives to discuss the progress of establishment of the NAC and assignment of the existing agreement. We are keen to execute the s31 Native Title State Deed required for the grant of some Mining Leases for our Miralga Creek project, so it would be helpful to meet so we can understand the status of this
There is a lot going on with the Corunna Downs project and proposed Miralga project [which relates to the mining leases] so it would be helpful to meet so we can discuss ways to maximise opportunities for the NAC in relation to potential employment and contracting along with heritage management issues’ (Grantee Parties Document 3H)
On 13 February 2020, Arma Legal replied ‘I’m yet to obtain instructions regarding NAC’s satisfaction in relation to the arrangements applicable to M45/1280. However, reviewing this along with the applications for M45/1281 and 1282 are being prioritised by the NAC’ (HMH-21). Arma Legal attached a Deed of Assignment executed by the Nyamal Applicant and NAC, noting that it was the original Deed of Assignment Arma had proposed, not Atlas Iron’s revised draft because ‘execution of this Deed was underway prior to receiving Atlas’ proposed revised drafting’. The Deed assigns the 2008 agreement entirely to NAC (HMH-21).
The next day the grantees replied (HMH-22): ‘While I appreciate the effort that has gone into securing signatures, unfortunately we cannot use this deed. Atlas did provide this feedback (along with suggested revisions) to you immediately on receipt of your proposed draft, but they have not been addressed.’ Atlas Iron noted ‘All of the claim area has not been determined… Atlas need to continue to have a legal relationship with the Njamal applicants in respect of the undetermined area.’
Between January and April 2020, the grantees and Arma Legal communicated regarding the Deed of Assignment, and also discussed revising and amending the 2008 Agreement to provide for the undetermined claim area only and the possibility of an alternate form using the 2008 agreement as basis an Indigenous Land Use Agreement (ILUA). In April 2020, the grantees wrote to Nyamal that the grant of the leases had become ‘critical’ and requested feedback of the status of the matter from Nyamal. Arma Legal responded in April noting ‘we understand Atlas’ urgency in the execution of the State Deeds’ and attached a draft negotiation protocol ‘to govern both the process of negotiating and finalising the RNTBC ILUA and the process of the review of the [2008 agreement] and revision of the same’ (HMH-27 and HMH-29).
In May 2020, Atlas Iron suggested seeking mediation assistance from the Tribunal and all negotiation parties agreed to that process (HMH-32 to HMH-38).
June 2020 to October 2020
Mediation commenced on 12 June 2020 and a number of Tribunal mediations were held between June and September 2020.
On 18 June 2020, Arma Legal emailed the grantees a letter stating that compliance with regulation 8 of the Prescribed Body Corporate regulations required an authorisation meeting before State Deeds could be signed for the leases. Arma Legal estimated the cost of this to be in the vicinity of $240,000-$260,000 for the authorisation meeting only ‘and does not include any possible required amendments to the ancillary agreement or negotiation of terms of agreement in relation to Atlas’ current tenure or tenure that is under application.’ Arma Legal also enclosed a marked-up copy of the draft negotiation protocol (HMH-40).
In July 2020, the grantees and Nyamal conferred together to seek a legal opinion from counsel in order to break the impasse on whether or not the 2008 agreement applied, with the grantees meeting the cost of that opinion. An agreed joint brief was put to counsel, and on 19 July 2020 counsel gave a forty two page opinion on various questions put to them by the parties.
Nyamal were of the view the opinion supported their position that the 2008 agreement did not apply to the new leases, and the grantees were of the view the opinion did not answer the question, or was, at best, not clear, and they needed time to consider.
I do note counsel outlined the opinion was based on a number of assumptions and interpretations, and ‘involve[d] complex questions of fact and law that cannot be answered on the present instructions’ (HMH-44 at page 22). It is not my role to comment on the legal advice, but rather, to consider the conduct of parties in the context of the good faith negotiations. That they could not agree on the interpretation of counsel’s advice, particularly given the form of the advice, does not amount to lack of good faith in my view.
The August 2020 mediation saw the grantees emphasise the project was ‘time-critical’ and that if the 2008 agreement was not suitable from Nyamal’s perspective, then the commercial terms of the 2008 agreement could be the basis for negotiations. Nyamal indicated a process would be needed to pursue those negotiations, including a budget for such negotiations (HMH-50). On 11 September 2020, Nyamal put forward a budget with 4 line items, of which the grantees (on 14 September) agreed to two items (costs for NAC to review the 2008 agreement and for Arma Legal to provide advice to NAC), but not to two others and these needed ‘further clarification’ (which related to past costs) (HMH-60, and see also HMH-57 and 59). The grantees indicated they would consider future costs (HMH-57, 59 and 60). Nyamal also presented their negotiation protocol, which they suggested would provide a pathway for negotiations. However, the grantees felt the protocol did not provide sufficient certainty regarding the scope for negotiations (HMH-60).
On 8 September 2008, the grantees made their future act determination applications (FADAs) to the Tribunal. It is worthwhile quoting from parties’ communications from late September and October 2020, as the exchanges succinctly summarise party positions. On 25 September 2020, Nyamal emailed the grantees noting ‘the position of the NAC at this point is that it has little alternative but to allocate its available resources to defending the FADAs that Atlas has lodged’ (HMH-62). The same day, Atlas Iron advised (in HMH-63):
Atlas is very disappointed to hear that NAC won’t be available to meet in early October. We think that a meeting between the parties is a key step in progressing a negotiated outcome. We reiterate that Atlas remains committed to trying to resolve these matters through mediation and Atlas’ previous offer to fund a meeting with NAC remains available.
Nyamal thanked Atlas Iron for their email and noted (in HMH-64):
Unfortunately the statutory obligations of a native title PBC to ensure that tenure is granted validly where that grant occurs by way of agreement are quite onerous. This, coupled with a FADA being made … places a PBC under significantly more pressure…
We trust you understand that in such circumstances, absent the withdrawal of the FADAs, a native title party has little option but to respond to the applications within the restricted timeframe available.
As advised, when the compliance dates have been met, NAC will keep you advised of when there is an opportunity to convene a meeting to discuss a review of the agreement discussed in the last mediation.
On Friday 16 October 2020, the grantees wrote to the NAC board (Grantee Parties Document 2) as follows:
In May 2019, Atlas advised the Nyamal People of its applications for a series of mining leases (M45/1280, M45/1281 and M45/1282) for its Miralga Creek Project and Atlas’ position that the Existing Agreement applies to those mining leases. In September 2019, Atlas asked NAC to sign State Deeds to facilitate the grant of those mining leases. Atlas has made numerous attempts to engage with NAC to discuss the applications since that time, but NAC has not yet offered any available dates.
Atlas was surprised to hear in March 2020 that NAC now does not consider that the Existing Agreement is binding on future tenure such as the Miralga Creek tenure…
In April 2020, Atlas asked what changes (if any) NAC is seeking to make to the commercial terms set out in the Existing Agreement. Atlas has continued to seek this information through a mediation process assisted by the National Native Title Tribunal. This mediation progressed until NAC advised in September 2020 that it was not in a position to continue those discussions.
Atlas remains open to considering a variation to the Existing Agreement but, in the absence of information about what variation the Nyamal People has in mind, it is not possible to progress that matter… Atlas made the difficult commercial decision to lodge future act determination applications with the National Native Title Tribunal seeking the grant of the Miralga Creek tenure… We reiterate to NAC that Atlas wishes to reach a negotiated outcome with respect to the Miralga Creek tenure and will continue to encourage NAC to meet with us for that purpose. Atlas restates its previous offer of funding to allow the NAC Board to form a view on the commercial terms of the Existing Agreement and to convene a meeting to discuss this view with Atlas.
Conclusions
With reference to FMGPilbara v Cox (at [20]), the requirement for good faith is directed to the quality of a party’s conduct ‘to be assessed by reference to what a party has done or failed to do in the course of negotiations’. It is this broad, overall assessment that directs my inquiry. It is not restricted to a moment or portion of time, but rather I must look at the overall conduct of the relevant parties and be satisfied, on the basis of this overall conduct, whether they negotiated in good faith. I have examined Nyamal’s assertions about the grantees conduct in that context.
I could not say the grantees attempted to avoid negotiations on the three leases, but rather they communicated to Nyamal their view the leases were covered by the terms of the 2008 agreement, and they sought Nyamal’s view as to a) whether they concurred and b) in the absence of any disagreement, when the State Deeds would be signed.
The grantees’ communications to Nyamal outlined their view the State Deeds were ready to be signed as per the 2008 agreement, but also left it open for Nyamal to communicate a different view, or pose any questions about that view. I cannot conclude the grantees were attempting to disregard the good faith negotiation scheme of the Act, but rather sought to rely on the 2008 agreement as a reference point for signing the s 31 agreements (in the form of the State Deeds).
When Nyamal made their position clear that they did not agree the terms of the 2008 agreement covered the new leases, the grantees requested and attended Tribunal mediation and worked with Nyamal’s representatives to draft, and meet the cost of, a joint brief to counsel to try and resolve the impasse between the two positions. Parties could not agree on the interpretation of counsel’s opinion and so the impasse remained.
Following the receipt of counsel’s opinion, the grantees then undertook to negotiate commercial terms that would apply to the leases, using the terms of the 2008 agreement as a basis. They also requested a budget for Nyamal’s participation in such negotiations, and they agreed to fund NAC’s costs to review the agreement and Arma Legal’s fees to advise NAC. They declined to fund previous costs that Nyamal incurred without ‘further clarification’. The grantees requested more precision on the terms of the Nyamal proposed negotiation protocol, and the future act determination applications overtook the provision of that precision, with the Nyamal representatives indicating they did not have the resources to undertake both negotiations in relation to the leases as well as provide materials for the inquiry process.
On reading all of the materials provided by parties, and considering parties’ final oral submissions, I cannot help but wonder whether a meeting at some early point, where Arma Legal were able to obtain clear instructions about the application of the 2008 agreement to the leases, and put those instructions to the grantees, would have saved both parties many months of emails and telephone calls. It may have saved putting at risk a relationship between parties which, based on the material, had seen a number of mining projects developed and progressed, including surveys done, and discussions through the MALC. As noted above, the Tribunal’s mediation process appeared to be the first time where parties were able to exchange their respective positions clearly and unequivocally.
Good faith focuses on an assessment of whether conduct is ‘unreasonable’, ‘unexplained’ or ‘unnecessary’. Looking at the good faith indicia as a guide to drawing my conclusions in this matter, I cannot say there has been unreasonable, unexplained or unnecessary behaviour by the grantee parties, nor a failure to make proposals by the grantee parties. I do not believe the behaviour of the grantee parties in these negotiations meets the threshold of lack of good faith, but rather reflects a subjective honesty of intention and an objective standard of overall reasonableness in the circumstances.
Determination
I am satisfied Wodgina Lithium Pty Ltd and Atlas Iron Pty Ltd negotiated in good faith as required by s 31(1)(b) of the Act. According to s 36(2) of the Act, I have the power to proceed to make a determination on the future act determination applications brought in respect of M45/1280, M45/1281 and M45/1282
Helen Shurven
Member
27 November 2020
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